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2018 (11) TMI 1904 - ITAT SURATShort term capital loss on transfer of right in leasehold property in a shop owned by a state government body namely Rajmata Viajyaraje Sindhia Krishi Upaj Mandi Samiti, Jodhpur - Applicability of provisions of section 50C - HELD THAT:- The perusal of section 50C manifest that it applies only to the land or building or both. Section 50C can come into play only in a situation where the consideration received or accrue as a result of transfer by a appellant of a capital asset being land or building or both is less than the value adopted or assessed or assessable for the purpose of payment of stamp duty in respect of such transfer. It is settled legal position that deeming provision can be applied only in respect of the situation specifically given and hence cannot go beyond the explicit mandate of this section. Therefore, it is essential for application of section 50C that transfer may not be of a capital asset being land or building or both. The assessee has transferred is lease holding rights in land and building. The ld.Counsel further relied in the case of Atul Puranik Vs ITO [2011 (5) TMI 576 - ITAT, MUMBAI] wherein it was held that section 50C applies only to a capital asset being land or building or both it cannot be made applicable to lease holding rights in a land as the assessee transferred leasing right for 60 years in the plot and not land itself, the provisions of section 50C cannot be invoked. Further, the decision of Hon'ble Bombay High Court in the case of Green Field Hotels & Estate (P) Ltd. [2016 (12) TMI 353 - BOMBAY HIGH COURT] Smt Devindraben I.Barot [2016 (7) TMI 275 - ITAT AHMEDABAD] also applicable to present case. Thus we hold that provisions of section 50C are deeming provisions and same were applicable only in this situation where a capital asset being a land or building or both is transferred. Therefore, we hold that the Lower Authorities were not justified in taxing short term capital gain in respect of transfer of leasehold rights, hence, same is therefore deleted. Appeal of assessee allowed.
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